Final Paper(:

Word Count:1,813

 December 13, 2010

Marriage Equality

            The controversy over marriage equality has been a major issue in the United States for many years. This issue has evolved and progressed by the legalization of interracial marriages, however, there is still a long road to fully achieve marriage equality. Same-sex marriages are deprived of full rights that heterosexual marriages receive in society today. Marriage has been defined by society as “the legal and sacred status entered by a man and a woman.” Therefore the marriage between same-sex couples is prohibited because there is still homophobia of the acceptance of marriage between someone other than a man and a woman. With the passing of Proposition 8 in California, the struggle for a change seems inaccessible. But same-sex couples continue to pursue the right to marry the person they love in the United States, not only as a civil union, but as a legal marriage. Setting political restrictions on issues like same-sex marriage that don’t benefit society as a whole seem like the best way to maintain control and order by the subordinate groups.  The historical ban on interracial marriages and the recent ban of same-sex marriages are used as forms of legal and social power to set limitations for minority groups based on race, gender and sexuality which deprives them from their fundamental rights.

Mildred Loving and her husband Richard P Loving
(Loving v Virginia Case)

            In American law there were prohibitions to any marriage that did not involve a man and a woman of the same race, which limited the fundamental rights and liberties for minority groups. Although now legal, some interracial marriages were illegal until the 1967 Supreme Court case of Loving v Virginia. One of the many couples affected by the ban of interracial marriages was Mildred and Richard Loving. This couple tried to evade the Racial Integrity Act, a Virginia state law banning marriages between any white person and any non-white person. The Supreme Court ruled that Virginia had anti-miscegenation laws that violated the Fourteenth Amendment. In Loving v Virginia: “To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so subversive of the principal of equality as the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law” (Eskridge and Hunter 799). An individual should have the right to marry anyone they wish without worrying about the racial backgrounds of the person. As the fourteenth amendment states, no person can be deprived of “liberty”, in this case the liberty to chose the partner of his or her choice.   Any action that violates a fundamental right should be taken into strict scrutiny, but the issue of same-sex marriage is only under rational basis, the lowest level of judicial review. This act itself is denying a same-sex couple of the right to marry and the freedom of choosing their partner. Other interracial marriage court cases like the Arizona case of Kirby v Kirby, where the “Caucasian” husband wanted an annulment because he found out his wife was a person of Negro blood, portray how the laws make race an important component in marriage. Race generally determines social and economic statuses, which makes two people of distinct races unable to marry each other because racial minorities are usually the lowest social classes. What is the most upsetting is the fact that the Virginia Racial Integrity Act and the Arizona law clearly state that the marriage “between any white person and any NON-white person” is illegal. These cases among others prove that these acts were done in an effort to maintain white superiority. By not allowing interracial couples to marry, the government sets the notion of the ideal citizens of having two white parents. Government creates this social construction through the restrictions being imposed on interracial couples. Setting restrictions on the rights of racial minorities keeps the white race in power and subordinate in society in order to have more political authority. By restricting the marriages between interracial couples the government prevents the contamination of blood, meaning having mixed children. The white race will maintain their supremacy by not only discriminating against racial minorities but also against homosexuals of their own race. Many white homosexuals are discriminated against because of their sexual orientation, which proves how a dominant group will go against their own group of people in order to maintain their own power.

The acceptance of same-sex marriages is based on American conservative politics and the society influenced by a heteronormative ideology. Same-sex couples have been brutally discriminated against by the government and society. The argument from opponents of same-sex marriages is that a marriage is strictly between a man and a woman, which is the traditional, religious belief. But there might be a more critical idea that builds the opposition against same-sex marriages: the procreation and breeding of children. Barbara Cox states in her article “The current definition of marriage is rationally related to the State’s legitimate interest in channeling opposite-sex relationships into marriage because of the propensity of sexual contact between opposite-sex couples to result in pregnancy and childbirth” (Cox 155). This is saying that if same-sex couples cannot have children, then it makes their marriage invalid. The government wants couples to have children so they can benefit society economically. A bigger family means more money is being spent and more taxes being paid. Having children is an economic benefit that the same-sex couples can’t provide. Chief Judge Kaye said “ While noting the many ways the Legislature could promote procreation in marriage, such as tax breaks, subsidized child care, or mandated family leave to married couples who procreate, she argued that “no one rationally decides to have children because gays and lesbians are excluded from marriage””(Cox 155).  Although the government does not explicitly state that childbirth is beneficial to them, this statement by Chief Judge Kaye does imply it. She basically listed all the ways in which childbearing helps the government. In society, gay marriages are not accepted because heterosexists have a homophobia against all gay people. Opponents of gay marriages believe that “By admitting gay people into a fundamental mainstream, same sex-marriage would contribute to the denormalization of heterosexuality, the denormalization of traditional gender roles, and perhaps even the undermining of sex binarism itself” (Eskridge 1360).  Heterosexists want to maintain the heterosexual norm of the relationship between a man and a woman, and gay couples cannot perform that norm. But some states like Connecticut, Vermont, Iowa, Massachusetts, New Hampshire, and (since March 3rd of this year) Washington D.C. have understood that change can be good, and by legalizing gay marriage they have tried to fit gay people into society. But there is still the fear that if government grants marriages to gay couples the state’s imprimatur, the official stamp of approval, the dominant group will not have total power and control over minorities.

Along with the limitations of marriage being strictly between a man and a woman comes the limitations of marriage affecting the legal status of a citizen marrying a non-citizen. In the past, the citizenship of a person was strictly based on their race. No one other than an American was able to become legalized or marry a citizen of the United States and if there was ever a marriage between a citizen and a non-citizen, the person’s citizenship was at great risk. The government did not allow the minority groups such as Mexicans, Asians, and African Americans to become legal in the United States; they were all considered illegal aliens. The only group that was explicitly protected by the government was the white race. In Cott’s article, Justice and Injustice in Law and Legal Theory, he states,

“When Congress had determined American naturalization policy in 1790 (as the new Constitution gave it power to do), it had stipulated that only “free white persons” could be naturalized. Perhaps more remarkably the racial exclusiveness became a fundamental tenet of American naturalization policy without any debate.” (83)

Once again, the government discriminated against the minority groups in order to maintain the white power over the United States’ citizenships. By legalizing only persons of white descent, the government has the power to control social and governmental issues. They believed that non-white people were inferior and therefore did not have enough right to be a part of this country. This issue leads back to interracial marriages and how the government does not want the white blood to be “contaminated”. By restricting the entrance of non-whites into America, they believed that whites would reproduce only with whites and therefore maintain white superiority. But once a significant number of immigrants began to migrate to the United States the ban on interracial marriages helped the government maintain their power and in cases like Mary K.’s where she was stripped of her citizenship because she married an Indian man. Mary K. was a citizenship, but because she married an “illegal alien”, she got her citizenship taken away by the government. These limitations are unfair and violate the fourteenth amendment by depriving Mary K. the liberty to have her citizenship. There was no logical explanation to why her citizenship was withdrawn, the only reason given was that she married a man who was an illegal alien and did not qualify for citizenship. Not only is government defining marriage strictly between two persons of the opposite sex, it was also basing marriage on the citizenship of a person that is ultimately defined by race.

The deprivation of same-sex marriages in many states has limited the basic human rights guaranteed by the constitution of this country. Using interracial marriages as a precedent case, we can use the same arguments to legalize same-sex marriages. The hegemonism, the political and social power of the government and heterosexists, will control the gay and racial minorities’ lives until absolute acceptance for everyone occurs. The official acceptance of same-sex marriage will not damage society or the government in any possible way. We should not continue the “separate but equal” doctrine now with same-sex marriages. Everyone is equal, and should not be separated by gender, class, and especially not sexual orientation. Same-sex marriages want what they deserve, the ability to get married with the person they love under all legal qualifications. We need an equal doctrine for all citizens of the Untied States.

 Works Cited

Cott, Nancy F. "Introduction." Public Vows: A History of Marriage and the Nation. Cambridge: Harvard University Press, 2000. 1-8.

     Cox, Barbara. "'A Painful Process Of Waiting': The New York, Washington, New Jersey, and Maryland Dissenting Justices Understand That 'Same-Sex Marriage' Is Not What Same-Sex Couples Are Seeking." 45 California Western Law Review 139. Fall 2008.

Eskridge, William. "Sexual and Gender Variation in American Public Law: From Malignant to Benign to Productive." 57 UCLA Law Review 1333. June 2010.

Eskridge, William and Nan Hunter. Gender, Law and Sexuality. New York: The Foundation Press, 1997 and 2009.